Hilton Bros. Motor Co. v. District Court , 82 Utah 372 ( 1933 )

I concur in the opinion of Mr. Justice HANSEN in so far as it holds that the court below was without jurisdiction to make the order complained of.

It is provided by the statute that "The writ of certiorari may be denominated the writ of review." Comp. Laws Utah 1917, § 7376;Clark v. Bramel, 57 Utah 146, 192 P. 1111; Pincock v.Kimball, 64 Utah 4, 228 P. 221.

Section 7377, Comp. Laws Utah 1917 provides that:

"A writ of review may be granted by the supreme court * * * when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court * * * any plain, speedy, and adequate remedy. * * *"

This court at one time held that the office of the common-law writ of review had been enlarged by statute and the decided cases. The limitation was imposed that the examination of the appellate court would not extend to determining a preponderance of the evidence from the record, but would determine whether there was any testimony to justify the judgment or finding of the inferior tribunal. Gilbert v. Board, 11 Utah 378, 40 P. 264;Salt Lake City Water, etc., et al. v. Salt Lake City et al.,24 Utah 282, 67 P. 791. In a later case this court has said, referring to these cases: "If the language found in the cases reported in 11 and 24 Utah * * * is in conflict with the views expressed by the later decisions, and as herein expressed, to that extent those cases must be considered as overruled."Pincock v. Kimball, 64 Utah 4, 228 P. 221, 223.

Construing section 7383, Comp. Laws Utah 1917, which reads: "The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer" — this court in Pincock v. Kimball, supra, has indicated a difference in the scope of inquiry by this court in examining whether the inferior court or tribunal has in the initial exercise of jurisdiction regularly pursued its powers and has then passed that point and into the field in excess of or beyond its jurisdiction and when the inferior court or tribunal has acted without jurisdiction. In the first instance, the examination of the record proceeds to the point of determination of the question of the inferior court or tribunal having exceeded its jurisdiction, while in the latter case the examination is halted at the threshold for want of jurisdiction.

In the case of University of Utah v. IndustrialCommission, 64 Utah 273, 229 P. 1103, 1104, Mr. Justice Cherry, speaking for the court, said:

"The obvious purpose of both parties to the proceeding, as disclosed by their respective briefs and arguments, is to obtain a decision of this court as to whether or not the University is an employer within the meaning and subject to the provisions of the Workmen's Compensation Act. But we think this review is ended before that question is reached. Comp. Laws Utah 1917, § 7383, provides that upon a writ of review the review cannot be extended further than to determine whether the inferior tribunal has regularly pursued its authority. The first inquiry is therefore whether or not the Industrial Commission had any jurisdiction or authority in the proceeding before it, to make any order at all. If it be found that no such authority existed, the review is ended, and it is of no consequence whether the order made was abstractly right or wrong."

That there is a right of appeal from an order releasing property from attachment in a proper case I think is the doctrine in this jurisdiction as announced in the case cited by the principal opinion in this case. Whether the plaintiff had a right of appeal in the instant case is another question, and as indicated in the language above quoted this review is ended before the question of the right of an appeal is reached. When the record clearly discloses there is a right of appeal and the parties are before the court, this court may not then allow the writ of review; neither may this court go into the facts for the purpose of determining a disputed question as to whether or not there is a right of appeal, when that right is not clearly disclosed by the record. The inquiry is limited by the Supreme Court to the determination of whether the lower court or tribunal acted without jurisdiction or in excess of jurisdiction.Hillyard v. District Court, 68 Utah 220, 249 P. 806, and cases cited.